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United States v. Beckham

United States District Court, D. South Carolina, Rock Hill Division

July 21, 2016

United States of America,
James Anthony Beckham, Defendant.



         Defendant, proceeding pro se, seeks relief in this court pursuant to 28 U.S.C. § 2255. ECF No. 128. The Government filed a response in opposition. ECF No. 131. On July 11, 2016, Defendant replied. ECF No. 134. This matter is now ripe for resolution.

         I. Background

         On December 21, 2010, Defendant was indicted in this District for conspiracy to possess cocaine with intent to distribute involving 5 kilograms or more, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). ECF No. 2. On May 18, 2011, Defendant entered into an amended written plea agreement to plead guilty to count 1 of the Indictment. ECF No. 67. On May 18, 2011, Defendant appeared before the court and after a thorough Rule 11 hearing (which Defendant does not challenge), entered a guilty plea to the count charged in the Indictment. ECF No. 71.

         A Pre-Sentence Report (PSR) assessed a two point increase in Defendant's base offense level due to possession of a dangerous weapon (including a firearm), pursuant to U.S.S.G. § 2D1.1(b)(1). See PSR ¶¶ 43, ECF No. 95. Defendant objected to a statement he made about carrying a firearm being used against him to support the enhancement, arguing that he was a confidential informant at the time, and also objected to the weight of drugs attributed to him. Addendum to PSR, ECF No. 95-1. In response, the Probation Officer noted that he consulted with the Government regarding protection from self-incriminating statements, and was told that Defendant was not under any such protection. Id. at 2. Defendant also objected to being enhanced for a firearm. Id. At sentencing, the court sustained objection 1 as to the drug amount, holding Defendant responsible for a lesser amount, and Defendant withdrew objection 2 regarding the firearm. ECF No. 84. Although Defendant's guideline range was decreased to 108-135 months based on a total offense level of 31 and a criminal history category of I (See SOR, ECF No. 87), Defendant was sentenced to the statutory mandatory minimum of 120 months. ECF No. 86.

         On August 26, 2011, Defendant filed a pro se motion for reconsideration of his sentence. ECF No. 100. After discussion with his attorney, Defendant made a motion to dismiss the motion for reconsideration, which was granted. ECF Nos. 104, 106. Defendant also appealed his sentence, but voluntarily withdrew the appeal as well. The appeal was dismissed on December 19, 2011. ECF No. 113.

         II. Johnson and Welch

         On June 26, 2015, the Supreme Court held that the residual clause of the Armed Career Criminal Act ("ACCA") violates due process as it "denies fair notice to defendants and invites arbitrary enforcement by judges." Johnson v. United States, 576 U.S. at, 135 S.Ct. 2551 (2015). By holding the residual clause unconstitutionally vague, the Court narrowed the predicate offenses that could serve to enhance a sentence to those in the enumerated or force clauses. The residual clause can no longer support a defendant's classification as an armed career criminal.

         On April 18, 2016, the Supreme Court decided Welch v. United States, 136 S.Ct. 1257 (2016), which held that the newly established right recognized in Johnson is retroactive to cases on collateral review.

         III. Discussion

         Defendant argues that he should be granted relief because his two point enhancement for possession of a dangerous weapon should be invalidated under Johnson. ECF No. 128. He also argues that, absent the mandatory minimum sentence, his guideline range would have been 87-108 months (after application of Amendment 782), and thus his sentence "would have been lower with application of the correct sentencing guideline range." Id. Defendant's arguments fail on both points.

         First, Johnson and its progeny have no effect on the two point enhancement for possessing a firearm in U.S.S.G. § 2D1.1(b)(1). As discussed above, Johnson serves to invalidate a portion of the definition of a "crime of violence" as utilized in the ACCA. Defendant argues that the reasoning in Johnson should apply to the sentencing guidelines; however, even if it did, it would not serve to invalidate the specific two point enhancement that affected Defendant's sentence. While Defendant is correct that some courts have applied Johnson reasoning beyond the ACCA, for example to the residual clause of the career offender portion of the sentencing guidelines or to the residual clause in § 924(c), there is simply no like reasoning that would invalidate the two level enhancement for possessing a dangerous weapon. U.S.S.G. § 2D1.1(b)(1) does not have a residual clause that could be held unconstitutionally vague; instead, it clearly lays out which convictions (all related to drug offenses) could receive the two point enhancement for possessing a dangerous weapon. Therefore, Johnson cannot serve to invalidate the enhancement received by Defendant.

         Second, Defendant was given a mandatory minimum sentence based on his drug conviction, not the possession of the firearm. The conspiracy to possess with intent to distribute statute prescribes this mandatory minimum:

[A]ny person who violates subsection (a) of this section shall be sentenced as follows: in the case of a violation of subsection (a) involving . . .5 kilograms or more of a mixture or substance containing a detectable amount of . . . cocaine. . . such person shall be ...

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